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Sex workers should be able to conduct business in homes and brothels, and to hire security so long as the relationship is not exploitative, but communicating for the purposes of prostitution should still be considered illegal, the province&rsquo;s top court has ruled.

Terri-Jean Bedford makes a victory sign during a press conference in Toronto on Monday March 26, 2012 with Nikki Thomas, left, and Valerie Scott, right. (Aaron Vincent Elkaim / THE CANADIAN PRESS)

By Jayme PoissonStaff Reporter

Mon., March 26, 2012

Sex workers should be able to conduct business in homes and brothels, and to hire security so long as the relationship is not exploitative, but communicating for the purposes of prostitution should still be considered illegal, the province’s top court has ruled.

They also agreed the law dealing with “living on the avails” of prostitution was unconstitutional, but chose to amend it, saying that the prohibition would still apply “in circumstances of exploitation.”

Three of the five judges, however, disagreed with Himel when it came to communicating for the purpose of prostitution in public, choosing to uphold that law and saying the judge made “several errors” when she chose to strike it down.

If the decision stands, its effects won’t be felt right away. The court stayed its judgment for 30 days to allow both sides time to appeal, and suspended their ruling on bawdy houses for one year to allow Parliament the chance to redraft legislation. The ruling gave 30 days before the amended living on the avails provision comes into force.

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It would give prostitutes the option to move indoors, where it can be much safer than working on the street.

“Prostitution is a controversial topic, one that provokes heartfelt debate about morality, equality, personal autonomy and public safety. It is not the court’s role to engage in that debate,” said the decision, adding that it was the panel's role to determine whether the provisions were unconstitutional. It is up to Parliament to respond with new legislation, the decision said.

After the ruling was released Monday, Ontario Attorney General John Gerretsen said the province wants to study the prostitution decision and said “the matter may very well be appealed to the Supreme Court of Canada.”

Asked if he thought the Ontario public would accept brothels, Gerretsen replied “I somehow doubt it…that’s only my personal opinion at this point in time.”

The province hasn’t had time yet to study Monday’s ruling in detail.

“Our main concern is that people feel safe in their communities, feel safe in their homes, and that this kind of an issue may well need legislative action” from the federal government, Gerretsen said, noting the prostitution law is part of the Criminal Code of Canada.

“It’s something that we take very seriously. We want to talk to our federal counterparts on this. It’s their criminal law that basically was called into question here and they’re the people that will have to deal with this issue if any legislative action is taken,” the attorney general told reporters.

“The current law…I think has served Canadians well. And that’s now been called into question….It requires an awful lot of thought as to what the next steps should be.”

In Sept. 2010, Himel ruled that laws meant to protect women and residential neighbours actually endanger sex workers’ lives and violate their rights. Her 131-page decision, based on 27,000 pages of evidence, didn’t come into effect, and was stayed, giving the government time to appeal.

Himel found that prostitutes, particularly those who work on the street, are at a much higher risk of violence. She concluded the law which prohibits communicating for the purpose of prostitution in public placed street prostitutes in danger because they couldn’t properly screen their clients. This outweighed the goal of combating social nuisance, she argued.

Three of the appeal court judges said that the argument for striking down the law didn’t meet the test for “gross disproportionality” and implied that Himel failed to recognize “(s)treet prostitution is associated with serious criminal conduct including drug possession, drug trafficking, public intoxication and organized crime.”

Justices Jim MacPherson and Eleanore Cronk disagreed, with MacPherson writing that the provision has a “devastating” impact on the right to life and security of the person for the most vulnerable group.

“The world in which street prostitutes actually operate is a world of dark streets and barren, isolated, silent places. It is a dangerous world, with always the risk of violence and even death,” he wrote, adding regret that his colleagues did not come to the same conclusion.

The panel deliberated for nine months. In June, it heard the arguments in defence of prostitution laws by Ottawa and Queen’s Park, and against from lawyers representing three sex workers, who launched the initial constitutional challenge on a shoestring legal budget.

The province argued that the legislation should be upheld because it promotes “the proper functioning of society” – one that values dignity and equality – and sends a message that disapproves of buying and selling sex.

The federal government made the case that the laws send a message to Johns and pimps that they engage in such activity at their own peril and that prostitution does psychological harm.

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